The 5G network

The Next Generation Mobile Networks (NGMN) describes 5G as “an end-to-end ecosystem” that is expected to “enable a fully mobile and connected society”. The most prominent include fixed-wireless access, ultra-reliable low-latency (high volume of data messages with minimal delay) communications, enhanced mobile broadband and massive . The effective implementation of the 5G vision could translate into driverless cars, virtual or augmented reality experiences, , robotics and . However, the proposed 5G use cases rely on , pertaining notably to latency, throughput, reliability and transmission character.

To address all of these use cases, networks need to become more flexible. This is achieved through , a form of virtual network architecture built on common shared physical infrastructure. Each network slice consists of an independent set of logical (software-based) network functions that support the requirements of the specific use case. For instance, the driverless car will rely on vehicle-to-anything (V2X) communication, which requires low latency but not necessarily a high throughput, while a streaming service being watched while the car is in motion will require a high throughput and is susceptible to latency. are thus employed to optimise the use of the physical network. This can also enhance , by isolating attacks on the network slice, given that security poses the biggest challenge as these networks evolve, according to Ray Lahoud, Chief Operating Officer at Allstream.

Network slicing relies on and . SDN the data and control planes, which, along with the management plane, constitute the three basic components of a telecommunications . By removing the control plane from network hardware and implementing it in software, SDN enables programmatic access, making network administration much more flexible.ÌęWhile SDN enables network slicing, the NFV architecture is employed to and its constituent resources, and orchestrating their allocation to realize the virtual network functions (VNFs) and network service.Ìę In a nutshell, NFV provides the ‘what’ (virtualization architecture) and SDN provides the ‘how’ (Application Programming Interfaces and control protocols) to .

SDNs can be deployed today leveraging existing Application Programming Interfaces ().Ìę APIs constitute a point of interaction between a number of systems. From the users’ point of view, APIs allow them to complete the action . APIs speed up the communication between apps and platforms, allowing service providers to deploy innovative high-quality services by bypassing one-on-one, costly and time-consuming proprietary integration. As Ibrahim Gedeon, Chief Technology Officer at Telus, described it, before embarking on any technological transformation journey we need to “speak the same language to talk about innovation”, which in turn translates to the need for a .

Network softwarization is paving the way towards X-as-a-Service (XaaS). XaaS refers to the concept that , including the functions that control a telecom network, notably Software as a Service (SaaS), Platform as a Service (PaaS) and Infrastructure as a Service (IaaS). With these resources made available by , telecom service providers maintain a major influence over the services they buy, while offloading the costs of Research and Development (R&D), security and optimization. XaaS extends , with Transportation-as-a-Service offered by Uber and Lyft, Grocery-as-a-Service by Safeway and Whole Foods, and Accommodation-as-a-Service by Airbnb.

New Business Models

According to the NGMN , 5G is expected to “empower value creation towards customers and partners, through existing and emerging use cases, delivered with consistent experience, and enabled by sustainable business models.” Essentially, this means that telcos will start shifting from their traditional Business-to-Customer (B2C) to a Business-to-Business (B2B) business model, by opening their networks to other stakeholders and allowing the latter to reuse their capabilities in order to deliver new services to customers.

Communication Service Providers (CSPs) can monetize new data-intensive Over-the-Top (OTT) services through partnerships with OTT providers or by charging them for access to their networks. In fact, operators have already started to leverage to deliver packaged services to end users. OTT players are expected to deliver more applications that require higher quality, lower latency, and other service enhancing capabilities, namely proximity, location, quality of service (QoS), authentication, on demand and in a highly flexible and programmable way.

In addition, as James Buchanan, Senior VP & General Manager of Ensemble ADVA Optical Networking, framed it, monetization of data is key to proving that it is worth investing in 5G. While telcos are now relying only on data to improve customer experience and QoS, with 5G network services combined with IoT and AI, new business models of monetization will arise, namely . New business opportunities will thus emerge for telcos not only through data monetization but also from the value delivered to enterprises via application and network intelligence layers.

IPR, RnD and Investment in 5G

The realization of the 5G vision, especially in terms of IoT-related applications, will require extensive R&D and investment. Robust intellectual property protection is an to this end. ÌęBased on the NGMN , the IP based business objective is to make 5G access affordable for all types of devices. The proposed NGMN recommendations include improving 5G Standard Essential Patent (SEP) Declarations, establishing Independent 5G SEPAssessments, and exploring and establishing Patent Pool licensing for 5G. All industry partners are expected to develop implementation plans for each of these recommendations.

Overall, this panel’s speakers strongly agreed on the fact that the 5G endeavor cannot be taken exclusively on by the private sector. This was consequently addressed by the Honourable Navdeep Bains, PC, MP, Minister of Innovation, Science and Economic Development in his , during which he announced the launch of ,Ìę, the Evolution of Networked Services through a Corridor in QuĂ©bec and Ontario for Research and Innovation, which is a 3P between the governments of Ontario and Quebec and private sector partners. Minster Bains described ENCQOR as “a 5G test bed that will advance the development of 5G networking solutions and next-generation technologies and applications”. In addition, he proclaimed the launch of two consultations regarding 5G deployment, one of which pertains to the . Based on the aforementioned, the plan toward the 5G seems clearly drafted and in line with the telecom industry’s mantra of “flexibility, scalability and cost”, as epitomized by Mr. Lahoud.

Yonida Koukio is an IPilogue Editor and an LL.M. Candidate at Osgoode Hall Law School.Ìę

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The Current Legal System on AI and Big Data

AI today creates and with minimal human input. This seems to create the expectation that AI machines will eventually reach fully decisions, in spite of the debate of the amount of time it will require. Yet, regardless the significant strides in the field, such as “AIVA”, the AI-powered , and the news that Saudi Arabia became the first state to grant to an AI robot, “Sophia”, IP law stands as a passive observer, with legislators hesitating to attribute authorship or inventorship, thus ownership, over AI-generated work.

As Osgoode Hall Law School PhD Candidate, , explained from a theoretical IP perspective, “there are three stages of development: computer-assisted, computer-generated, and AI works”. In computer-assisted works the computer is nothing more than a tool, like a pen. This was the conclusion in , which maintained that ascribing rights to a computer is as absurd as attributing authorship to a pen. But, as Gaon pointed out, even where there is strong evidence of minimal to zero human influence on the creative process, “courts will try to find some human ingenuity to establish authorship within the computer assisted work safe haven”, relying on the decision of the Alberta Court of Appeal in which addressed the issue of copyright protection of collection and computer assessment of seismic data.

The issue of IP rights over AI-generated work seems intertwined with ownership over data and databases, since AI algorithms employ big data. While in the United States (US) raw data and databases are not ordinarily copyright-protected, , Director at Zvi Meitar Institute of IDC Herzliya, highlighted the fact that, if a database is uploaded online bearing digital rights management protection, said database along with its underlying data is deemed copyright-protected under the . Raw data can also be protected as trade secrets or under . Conversely, accessing password-protected online data is considered (prohibited) unauthorized access, thus a violation of the US Criminal Act. That being said, GreenbaumÌę argued that the real value is not in the data but in the analytics, providing as an example Celera Genomics, which gave away genomic data that cost to sequence.

Commercial Practices on Big Data and AI-generated work

Given that under no regime is AI considered an author or inventor, an invention is either owned by people or falls under the public domain. That is why establishing a high degree of human influence on an invention is important, a point underscored by , Associate at McCarthy TĂ©trault LLP. From a legal perspective Piovesan also prompted AI stakeholders to illustrate the of the system in order to strengthen their claims for IP rights before courts, for instance elucidate whether the system is a product or a service, if it is a tool or an agent, and whether it is being controlled by the programmer or the user.

On the other hand, although the law is not settled on IP protection of big data, the latter is being commercially exploited. , Partner at Norton Rose Fulbright LLP, illustrated some practical aspects of commercializing big data: industry trends in licensing agreements include between “owners” of a (unique) data set and those who have the AI tools to process it. Additional value can be generated by “clearing data in a bad state”. Collaboration agreements, as Medeiros stressed, must draw a clear line on the expectation of who owns what. Data providers will aim at controlling access and retrieve it when the agreement ends, while AI providers will try to own or control data aggregation from different data sources. Such expectations should be clear in the pertinent contract, even though, as Medeiros emphasized, the issue of IP protection on the ownership of the transformation of data aggregates has not yet legally settled. Given the above, co-ownership between data and AI tech providers would not be recommended by Medeiros, who introduced sublicensing data for commercialization revenue share of the ultimate refined AI tool, as a trend.

Addressing the legislative gap

While AI is growing exponentially and robots are developing , regulators can address the legislative gap, for example, by framing AI as an employee, which would require minimal amendments in Copyright Law, assuming it encapsulates vicarious liability provisions. Nevertheless, as Piovesan argued, gaps could also be overcome by systems, as is being considered by legislators in Estonia.

Alternatively, Gaon proposed that a model for computer-generated work could prevent unlawful exploitation of AI works through promoting integration of knowledge and recreation of works. According to this model, IP rights could be divided between the programmer and the AI computer which, practically, means that computer rights would become available to the public for a short time or profits would be invested for the public good. Naturally, this model requires development of a test in order to establish human impact on creation, as Gaon noted.

Finally, , Senior Lecturer at UNSW Sydney Law, foresees that the AI challenge will be resolved by espousing the same principles that law evolved on, since the metaphysics have not changed. However, she argued that revolutionary change requires that we should have put that to place, as AI is already upon us. Similarly, , Associate Professor at Osgoode Hall Law School, echoed George’s views and positedÌę that we ought not to think about expanding the confines of IP without revisiting the normative justifications and rationales on which existing IP rights are premised. Yet, Piovesan noted that some of the fundamental principles of IP law are being challenged due to AI’s very nature, referring to fact that AI cannot be incentivized to innovate through recognition and reward. Moreover, although we have yet to reach “”, AI’s developing “emotional nature is pushing the boundaries of how we conceptualize and identify humans”.

All in all, the longer we delay addressing the issue of AI rights, the more radical of a reform will be required as the existing legal “boxes” may not be sufficient to fit the growing capabilities of AI, being the least of the recognitions it can attract. On the other hand, it seems contentious to approach this issue based on what AI can do; focus should be placed on what AI is, especially in light of it eventually reaching fully autonomous decisions. AI remains a tool, even if it ultimately behaves like humans. It is therefore imperative that, as a tool, AI continue to be under control, something which may be disincentivized if AI-generated work were to fall under the public domain.

Ìę

Yonida Koukio is an IPilogue Editor and an LL.M. Candidate at Osgoode Hall Law School.Ìę

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Patents and Plant Breeders’ Rights

Focusing on the overlap between patents and the plant breeders’ rights (PBR), Prof. de Beer, quoted Justice Arbour’s dissenting opinion in , which adopted Prof. Vaver’s view that “patents should not necessarily be available when other, more tailored intellectual property protection exists”. The same idea is traced back in the dissent of the United States (US) Supreme Court’s 5-4 decision of , which influenced the position of the Canadian Federal Court of Appeal in regarding the patentability of higher life forms. A decade later, when the Supreme Court of Canada was faced with the same issue in , Justice Bastarache suggested that PBR would not be available if patent rights were meant to apply and that plant breeders’ protection was better tailored for this purpose.

Prof. De Beer shed further light on the current development of PBR legislation and the business model built around the rights it introduces. In particular, influenced by a shift in Australian agricultural policy, Canada introduced the Ìęin 2015 to amend PBR legislation by establishing broader, longer, and stronger rights for plant varieties in Canada. Moreover, while revenues are generated on the recurring sale of inputs, namely seeds, under the patent regime, the revenue system stemming from the Plant Breeders’ Rights Act provides that royalties are collected on harvested materials. These end-point royalties serve as a risk sharing mechanism for farmers and are considered more favourable to farmers then the revenue system under the patent regime.

According to Prof. de Beer we can expect to see multiple IP rights in the lucrative industry of . Deciding which IP rights will apply in that context depends on scientific, economic, and business factors.Ìę However, he noted that it is scientifically questionable whether cannabis is stable enough to breed in a way that would meet the requirements for plant breeder rights, and there are also questions as to what a variety or strain is in the medical context.

The Relationship between Trademark Rights and Unfair Competition Law

Prof. Dinwoodie commenced his presentation by questioning whether the overlap in IP is ‘too much of the same’. While noting that there is no single general way to address the overlap of different IP rights, he suggested that a number of principles or other estoppel-like arguments could be used to circumscribe this outcome, for example the election doctrine as cited by the US Supreme Court decision in .

He also noted that legitimate social policy has been recognized by legislatures and courts as a competing force to accord constrained IP protection. For instance, to avoid the application of cumulative IP rights, the European Union and the United Kingdom use a hierarchical approach which can be cheekily summarized as “when two IP regimes come into conflict, trademark loses”.Ìę Citing ÌęProf. Dinwoodie suggested that due to the functionality doctrine of trademark law, producers often opt for patent, copyright or design law protection over trademark protection.

Invoking the decision of the US Second Circuit Court of Appeals in , Prof. Dinwoodie proposed applying a normative approach to the scope of trademark protection. For example, treating shape marks as “thin” trademarks could help achieve a better balance between the industrial policy and consumer protection objectives of trademarks and unfair competition. Besides, the complementary role of unfair competition law [2], recognized in , could be further untangled, for instance by offering weaker remedies to empirically-grounded unregistered claims, while also requiring proof of real social harm.

Finally, Article 10bis of the could be employed to balance IP over-protection with users’ rights. As Prof. Dinwoodie suggested, since trademark defences in the EU inquire of honest practices in industrial and commercial matters, the existence of a right to engage in a particular conduct under another IP regime with equal claim to regulate may offer a way of reconciling the competing claims of trademark and other IP regimes.

The Hon. Roger T. Hughes rounded off the discussion by explaining why redundancy and overlap are desirable and necessary.Ìę Drawing examples from his engineering training and legal practice, he craftily illustrated that redundancy and overlap can lead to the evolution of IP law.

There was consensus among the panelists that there would be less redundancy if the lines of the overlapping applicable IP legislation are more clearly drawn as the law evolves to respond to emerging issues. Besides, as Justice Robin Jacob observed, "The big question for David is and always has been, where is the rational, the sensible, place to draw the line between too much and too little" [3].

Yonida Koukio is an IPilogue Editor and a LL.M. Candidate at Osgoode Hall Law School.Ìę She holds LL.B. and LL.M. degrees from Democritus University of Thrace, Greece, and is a member of the Athens Bar Association since 2014. As a lawyer, Yonida practiced in the areas of health law and civil litigation. Currently, Yonida’s further interests extend to privacy and technological innovation. She is also the co-founder of LAWCALS, the first L2L platform in Greece, which connects lawyers and simplifies the delegation of legal tasks among them.

[1]Ìę See also Mark D. Janis, “Interfaces in Plant Intellectual Property”, at Neil Wilkof & Shamnad Basheer (eds), Overlapping Intellectual Property Rights (Oxford: Oxford University Press, 2012), at 83.

[2]ÌęSee also Axel Nordemann & Tara Mooney Aaron, “The Relationship between Trademark Rights and Unfair Competition Law”, at Neil Wilkof & Shamnad Basheer (eds), Overlapping Intellectual Property Rights (Oxford: Oxford University Press, 2012), at 341.

[3] Catherine Ng, Lionel Bently & Giuseppina D'Agostino, eds.,ÌęThe Common Law of Intellectual Property: Essays in Honour of David Vaver (Hart Publishing Oxford 2010) at vi.

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Technology, though, is developing at such a pace that any proposed legislation, however foresightful, will soon be outdated. Thus, , the concept proposed by Dr. , Executive Director of the at (and former Information and Privacy Commissioner of Ontario), is an astute solution to privacy protection that does not rely exclusively on legislation. Dr. Cavoukian suggests that privacy be coded or embedded into the design of information technology, networked infrastructure, and business practices. This proactive and non-remedial approach is user-centered and promotes transparency, incorporating the objectives of legislative reform efforts.

PbD has already been adopted in foreign jurisdictions. For instance, the European Union (EU) is a pioneer in implementing an up-to-date privacy regime that takes the PbD concept into account. Article 25 of the 2016/679 (GDPR), effective May 25th, 2018 onwards, stipulates that data protection measures are designed into the development of business processes for products and services. Meanwhile, the State of California looks to be taking the lead in legislating on . In particular, will create a mandate under California law, pursuant to which all IoT devices will have built-in security features appropriate to the device, as well as the information collected.

Embedding security features into IoT devices also ensures protection from cyber attacks. Network-connected devices can . As panelist , Principal Security Technologist at , mentioned, the technology to allow carriers to stop these attacks exists; what remains is to understand how it works.

From a maufacturing perspective, IoTs can be designed to ensure both security and privacy. However, as ,ÌęGeneral ManagerÌęof Network Security for ’ Enterprise Business Unit, observed, embedding these features into IoT devices will probably increase their cost. Therefore, in an industry where competitors often strive to have more affordable products, IoT manufacturers need to identify specific commercial benefits for being the most “secure” in the market. Eventually, the ultimate choice should be given to customers, who will decide whether they want to invest more in devices with embedded security, or in less expensive ones with add-on (albeit compromisable) security features.

Yet, PbD alone is insufficient to promote privacy, absent a stricter regime on how (online) service providers obtain users’ meaningful consent. Most online agreements to-date include terms of service (), which further permit service providers – along with the third parties they contract with – to keep, analyze and sell their users’ data. By incorporating click-to-agree clauses into ToS, users wishing to access the respective services are left with no choice but to agree to give away their privacy rights. The majority of users are not incentivized to they agree to, since they are not in a position to negotiate a new agreement. As Dr. Cavoukian posited, a drastic reform is required on this front: ToS should prevent service providers from using their customers’ personal data by default, unless opt-in consent has been obtained, also entailing specific conspicuous disclosures. For instance, provides that ‘consent’ of the data subject comprises any freely given, specific, informed and unambiguous indication of the former’s wishes, by which they, through a statement or a clear affirmative action, demonstrate that they agree to the processing of their personal data.

Dr. Cavoukian also pointed to other risks from privacy and security breaches, related to remote home health care, closed-circuit television camera (CCTC) or surveillance cameras in mass transit systems, smart meters and the smart grid, near field communications, radio-frequency identification (RFIDs) and sensor technologies, big data and data analytics, and internet protocol address location (IP Geolocation). Interestingly, the latter is expected to be addressed by the United States (US) Supreme Court in , notably vis-Ă -vis the .

Recent Canadian jurisprudence, on the other side, has attempted to strike a balance among privacy rights, and the investigative power of law enforcement, with particular regard to telecoms’ compliance with formal search warrants and production orders. In the Supreme Court of Canada (SCC) interpreted the meaning of the word “intercept”, as defined under , in a broad fashion. It did so to protect individual privacy interests in communications. In specific, assessing whether a general warrant power can authorize the prospective production of future text messages from a service provider’s computer, . maintained that Canadians have a reasonable expectation of privacy in their voice communications; these must not be intercepted without compliance with the due process provisions of part VI of theÌęCriminal Code. Technical differences inherent in new technology should not determine the scope of protection afforded to private communications, which should be extended to traditional voice communications and text messaging alike.

Similarly, the Ontario Superior Court in examined, inter alia, if there is a reasonable expectation of privacy in the records to be producedÌę in compliance with the police’s “tower dump” production orders to further an investigation into a string of jewelry store robberies; and if so, whether the telecoms have standing to assert it on behalf of their thousands of affected subscribers. While the Court both issues in the affirmative, it also formulated specific guidelines which respect the information needed to obtain production orders: a statement or explanation is required that demonstrates that the officer seeking the order is aware of the principles of incrementalism and minimal intrusion, and has tailored the requested order with that in mind; an explanation as to why all of the named locations or cell towers, and all requested dates and time parameters, are relevant to the investigation; an explanation as to why all types of records sought are relevant; any other details or parameters which might allow the target of the production order conduct a narrower search and produce fewer records; and a request for a report based on specified data instead of a request for the underlying data itself, are also required. The police should also include confirmation that the types and amounts of requested data can be meaningfully reviewed.

Ensuring privacy is more crucial than ever, especially in light of the coming from the United Kingdom’s current Prime Minister, Theresa May, that internet companies are providing a "safe space"Ìęfor extremism, and her proposal to "regulate cyberspace toÌęprevent the spread of ". However, neither regulating against extremism nor the familiar ‘’ argument are sufficient reasons to leave the door open for potential privacy breaches. Similarly, tech firms, privacy campaigners and academics point out that providing “” underestimates the entire purpose of privacy, while allowing both law enforcement agencies and outlaws to open and bypass these safeguards.

In Canada, Ìęthe Anti-terrorism Act 2015Ìę(former Bill C-51) was criticized for entailing numerous , as it provided several federal government agencies with almost to monitor and profile ordinary Canadians, with a view to identifying security threats. ÌęNotably, in a 2016 the Federal Court ruled that used by the ÌęCanadian Security Intelligence Service’s data-analytics program violates federal laws, namely the . Thus, on the 20th of June 2017 the Government introduced : An Act respecting national security matters, which attempts to clarify, among other Bill C-51-related : what type of activities the Canadian Security Intelligence Service (CSIS) could employ in order to comply with the , and the information sharing process between federal institutions for national security purposes under the SCISA. Bill C-59 aims at: strengthening national security agencies’ accountability through the creation of a new, comprehensive national review body, the National Security and Intelligence Review Agency (NSIRA); enhancing oversight through the creation of an Intelligence Commissioner; and increasing transparency through a commitment to share national security information with Canadians.

By way of conclusion, the imperative of increasing the privacy threshold both from a legislative and Ìęindustry practice standpoint is highlighted from the vast number of compromisable interconnected devices that haveÌębecome an integral part of our everyday life. Additionally, storage ofÌęprivate information obtained via these devices by big data companies for either commercial or surveillance uses, makes it obvious that a proactive approach is required. This can be best achieved by embedding privacy and security not only into the design of information technology, but also to every networked infrastructure and business practice. Failure to do so is not limited to merely jeopardizing business reputation and risks from class action liability; non-compliance with international standards may as well hinder commercial relations, similarly to the effect of theÌęÌę, which has been found invalid by EU courts.

Yonida Koukio is an IP and Business Law LL.M. Candidate at Osgoode and an IPilogue editor.

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ÌęThe brings together the leadership of Canada’s telecom, broadcast, and IT industries. For its 16th year, the CTS focussed on and featured keynote presentations and panel discussions on the range of issues facing industry and public policy makers in Canada. IP Osgoode and the IPilogue team members thank the CTS’ organizers ( and ) and for their generous support to allow us to attend.

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